STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-6074

)

JOSEPH MARCELIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 13, 1997, at Miami, Florida, before J.D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Raymond L. Robinson, Esquire

Bruce M. Pasternack, Esquire Raymond L. Robinson, P.A.

1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146

For Respondent: Joseph Marcelin, Pro Se

16561 Southwest 144th Court Miami, Florida 33177

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on August 2, 1994, when the Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), issued an administrative complaint against the Respondent, Joseph Marcelin. Such complaint alleged that Respondent had violated provisions of Florida law by assisting an unlicensed person or entity to engage in the practice of contracting; by making misleading, deceptive, untrue or fraudulent representations in the practice of his profession; and by knowingly conspiring to evade the provisions of Chapter 489, Florida Statutes, by allowing his certificate or registration to be used by an uncertified or unregistered person. The Respondent timely disputed the allegations of the administrative complaint and requested a formal hearing. The case was forwarded to the Division of Administrative Hearings for

formal proceedings on December 26, 1996.

At the hearing, the Petitioner presented testimony from Joseph Marcelin, Denis Joseph, and Eric Wardle. Its exhibits numbered 1 through 17 have been admitted into evidence. The Respondent testified in his own behalf and offered exhibits numbered 1 through 6 which have also been received into evidence.

A transcript of the proceeding was filed on March 18, 1997. Petitioner requested and the parties were granted leave until April 11, 1997, to file proposed recommended orders. On April 17, 1997, Respondent filed an emergency motion for extension of

time to file Respondent's proposed recommended order since Respondent retained counsel subsequent to the formal hearing. The Respondent was granted two extensions (the second entered May 5, 1997) to file a proposed recommended order. The parties' proposed orders have been considered in the preparation of this order.

FINDINGS OF FACT

1. At all times material to the allegations of this complaint, the Respondent, Joseph Marcelin, was a certified residential contractor, license number CR C028352. Respondent’s place of business and residence are in Dade County, Florida.

2. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed contractors.

3. On May 14, 1988, the Construction Industry Licensing Board entered a final order approving a settlement stipulation regarding Case no. 74860 against this Respondent. This final order directed Respondent to adhere to and abide by all of the terms and conditions of the stipulation.

4. The stipulation required the Respondent to not violate the provisions in Chapters 455 and 489, Florida Statutes, in the future; required Respondent to honor a settlement in a civil matter; required Respondent to pay a fine in the amount of

   $500.00; suspended Respondent’s license for thirty days; and required Respondent to affirmatively demonstrate compliance with

   the stipulation in order to have his license reinstated.

   
   

5. A second final order entered by the Board on May 14, 1988, approved a settlement stipulation regarding Case no. 77499. This final order also directed Respondent to comply with the stipulation applicable to that case.

6. In Case no. 77499, the stipulation required Respondent to abide by a civil settlement; imposed a fine in the amount of

   $500.00; suspended Respondent’s license for thirty days; and placed the burden on Respondent to demonstrate he had met the terms of the stipulation.

7. As to both cases referenced above, Respondent admitted the allegations of the administrative complaints which, in pertinent part, claimed Respondent had assisted an unlicensed person or entity to perform contracting services thereby aiding and abetting an unlicensed person to evade the provisions of Chapter 489, Florida Statutes.

8. On April 2, 1993, Respondent executed a certification change of status form which was submitted to the Department. Such form was completed for the purpose of qualifying as an individual for licensure and sought to reinstate a delinquent license or change from inactive to active.

9. In the course of completing the change of status form Respondent was required to answer a series of questions by checking either the “yes” or “no” column.

10. In response to the question as to whether Respondent had “been charged with or convicted of acting as a contractor without a license, or if licensed as a contractor in this state or any other state, had a disciplinary action (including probation, fine or reprimand) against such license by a state, county or municipality?,” he answered “no.”

11. Such answer was false. Further such answer was made under with the following affirmation:

    I affirm that these statements are true and correct and I recognize that providing false information may result in a FINE, SUSPENSION, OR REVOCATION of my contractor’s license. [Emphasis in original.]

    
    

12. Thereafter, the Department notified the Respondent that his license would not be issued as he had failed to demonstrate satisfaction of a civil judgment and had not submitted an explanation of the disciplinary action from 1988.

13. Respondent eventually resolved issues of licensure with the Department and, on September 15, 1993, was authorized to practice contracting.

14. Prior to his license being reinstated, Respondent performed the following: on April 7, 1993, Respondent obtained a building permit for construction work at the home of Eduardo Bovea. This permit, no. 93181501, indicated Respondent as the contractor of record for the project.

15. On the permit application Respondent represented himself as the licensed building contractor for the Bovea project to the Metropolitan Dade County building and zoning department.

16. Respondent did not have a contract with Bovea for the construction work to be performed on the Bovea home. In fact, the contract was between Bovea and Lou Greene Construction.

17. The Boveas paid monies to Rodney Salnave, who claimed to be a representative for Lou Greene Construction. Rodney

    Salnave was not Respondent’s employee, and was not licensed as a contractor.

18. The Respondent did not talk to the Boveas regarding the contract, the scope of the work to be done, or the contract price for the work.

19. All discussions regarding the work at their home (and payments for same) were between Rodney Salnave and the Boveas.

20. The permit for the Bovea project represented the amount of the work to be $2,000.00. In fact, the contract price for the work was $4,500.00. Respondent misrepresented the value of the work for the Bovea project.

21. As of September 26, 1993, Respondent admitted he was involved with seventeen contracting jobs. Just eleven days after having his license reinstated, and while being employed in a full-time (8:00 a.m. to 5:00 p.m.) job with Dade County, Respondent had contracting responsibility for seventeen jobs.

22. In reality, Respondent had made a deal with an unlicensed person, Denis Joseph, to pull permits for him. The jobs were for persons who, in some instances, Respondent had never met.

23. For example, Mr. Joseph pulled a permit for work to be performed on a home owned by Ed Davis. The contract for the work was between Mr. Davis and a Mr. Sutton, an unlicensed contractor, but with the approval of Respondent, Mr. Joseph obtained a permit for the Davis job.

24. A second job was for Bertha Joseph. In this instance, Mr. Joseph completed the permit application which Respondent signed thereby allowing Mr. Joseph to obtain the permit for the project.

25. By signing the permit, Respondent represented himself to be the contractor for the job. In truth, the homeowner had contracted with Denis Joseph for the work to be done, but the project was completed by Emanuel Gideon, an unlicensed contractor.

26. Respondent admitted receiving payments from Denis Joseph.

27. Respondent admitted he was not actively involved with the Bertha Joseph project.

28. In September, 1993, Eric Wardle, an investigator with the Dade County building and zoning department, interviewed Respondent regarding claims that he was obtaining permits for unlicensed contractors.

29. According to Mr. Wardle, Respondent admitted he pulled permits for unlicensed contractors after Hurricane Andrew because they were trying to make a living.

30. At hearing Respondent disputed the accuracy of Mr. Wardle’s investigation but admitted he would have told him “anything just for him to get away from me.” Respondent’s explanation at hearing was not persuasive.

    CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57, Florida Statutes.

32. The Petitioner bears the burden of proof to establish, by clear and convincing evidence, the allegations of the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). As more fully explained below, the Petitioner has met this burden.

33. Respondent has been charged with violating the following provisions of Section 489.129, Florida Statutes:

    1. The board may take any of the following actions against any certificateholder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate or registration, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $5,000 per violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent, a financially responsible officer, or a secondary qualifying agent responsible under s. 489.1195 is found guilty of any of the following acts:

       * * *

       (c) Violating any provision of chapter 455.

       * * *

       1. Performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the certificateholder or registrant knows or has reasonable grounds to know that the person or entity was uncertified and unregistered.

       2. Knowingly combining or conspiring with

       an uncertified or unregistered person by allowing his certificate or registration to be used by the uncertified or unregistered person with intent to evade the provisions of this part. When a certificateholder or registrant allows his certificate or registration to be used by one or more business organizations without having any active participation in the operations, management, or control of such business organizations, such act constitutes prima facie evidence of an intent to evade the provisions of this part.

34. Section 455.227(1), Florida Statutes, provides:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       1. Making misleading, deceptive, or fraudulent representations in or related to the practice of the licensee's profession.

          
          

35. The guidelines for penalties are found in Rule 61G4- 17.001, Florida Administrative Code. Such rule provides, in part:

    The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to other provisions of this Chapter.

    * * *

    (3) 489.129(1)(c): Violating any part of Chapter 455. Penalty within ranges prescribed by Section 455.227, unless otherwise prescribed herein.

    (a) 455.227(1)(a): Fraud, deceit, misleading, or untrue representations. First violation, $1,000 to $3,000 fine and/or probation, suspension, or revocation; repeat violation, revocation and $5,000 fine.

    * * *

    1. 489.129(1)(e): Assisting unlicensed person to evade provision of Chapter 489. First violation, $500 to $2,500 fine; repeat violation, $2,500 to $5,000 fine and/or probation, suspension, or revocation.

    2. 489.129(1)(f): Combining and conspiring

    with unlicensed person or entity to evade provision of Chapter 489. First violation,

    $500 to $2,500 fine; repeat violation, $2,500 to $5,000 fine and/or probation, suspension, or revocation.

    
    

36. Rule 61G4-17.002, Florida Administrative Code, sets forth factors which may be considered for purposes of mitigation or aggravation of the penalty to be imposed. In this case, such criteria have been considered.

37. The Petitioner has established by clear and convincing evidence the Respondent violated the provisions of law as alleged in the administrative complaint. Specifically, Petitioner has proved: Respondent executed false permit applications indicating he was the contractor on projects for which he was not responsible; misrepresented the value of the work to be performed by understating the contract amount on permit applications; assisted unlicensed persons to obtain permits for work for which he did not perform nor take responsibility; misrepresented his involvement in such projects to the Dade County building official; and executed documents as a contractor prior to the time his license was reinstated.

38. Additionally, it is concluded Respondent knew individuals who he was assisting, in particular Denis Joseph, were unlicensed. That Respondent has been disciplined in the past for similar acts has resulted in no change of conduct on his part. This cavalier attitude shows a gross indifference to the provisions of law which govern his profession.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order revoking Respondent’s contractor license and imposing an administrative fine in the amount of $8,500.00.

DONE AND ENTERED this 16th day of May, 1997, in Tallahassee, Florida.

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

COPIES FURNISHED:

Bruce M. Pasternack, Esquire Raymond L. Robinson, P.A.

1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146

Joseph Marcelin

16561 Southwest 144th Court Miami, Florida 33177

Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1997.

Rodney Hurst, Executive Director Department of Business and

Professional Regulation/CILB

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation

1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-006074

Orders for Case No: 96-006074